Industrial Tribunals Northern Ireland Decisions

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Cite as: [2009] NIIT 1785_7IT, [2009] NIIT 1785_07IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1785/07

CLAIMANT: Pamela McMullan

RESPONDENT: Royal School Dungannon

DECISION

The unanimous decision of the tribunal is that the claimant is engaged in the same or broadly similar work as Mr Moore, Mr Reid and Mr Canning. The tribunal is satisfied that the respondent has established a genuine material factor defence in respect of the differential in pay between the claimant and Mr Moore and Mr Reid. However, the tribunal is not satisfied that the respondent has established a genuine material factor defence in respect of the differential in pay between the claimant and Mr Canning.

Constitution of Tribunal:

Vice President: Mrs P Smyth

Members: Mrs Hughes

Mr McKenna

Appearances:

The claimant was represented by Mr M McEvoy, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.

The respondent was represented by Mr S Elliott, Barrister-at-Law, instructed by Simmons Meglaughlin & Orr, Solicitors.

The issues to be determined by the tribunal are whether:-

(1) the claimant is engaged in the same or broadly similar work as her three comparators; and

if so

whether the difference in pay is due to a material factor other than sex.

The claimant is the Head of the Food and Fabric Technology Department (traditionally known as Home Economics) in the Royal School Dungannon. Upon appointment as Head of Department in November 1993 her terms and conditions of employment entitled her to the equivalent of two responsibility points. This equates to an additional monthly payment over and above her basic teaching salary as Head of Department. Her contract states that her duties “shall include the following duties as a condition of [her] appointment to …:-

(i) Teacher-in-charge of Food and Fabric Technology

(ii) Form Mistress

(iii) Normal day staff-boarding duties

The claimant’s case is that she is doing the same or broadly similar work to three male Heads of Department in the school:-

(a) Mr Nigel Canning – Head of the Design and Technology Department;

(b) Mr David Reid – Head of the Biology Department; and

Mr Phillip Moore – Head of the Modern Languages Department

All three male Heads of Department receive three responsibility points.

Mr Canning has received three responsibility points since his appointment as Head of Department in November 2000. His contract confirms that his duties shall include the following duties as a condition of [his] appointment to full-time permanent Assistant Teacher:-

(1) Head of Department

The respondent contended that the reason Mr Canning received three points upon appointment was because of difficulties in recruitment to that particular post. Mr Wheeler stated in his witness statement to the tribunal that the Headmaster had consulted with other schools on the availability and quality of recently acquired Heads of Department of Design Technology as well as with those running courses in Stranmillis and the two local universities in this area of the curriculum. He stated that it was clear that in order to attract a candidate of sufficient relevant experience, qualifications and quality it was essential to be able to award a third point. He stated that subsequent advertising and interviewing proved this to be the case. He pointed out that the Department was undergoing a major rebuilding programme, and required a very experienced teacher to be able to mastermind this and the teaching of the A Level work which had been encountering difficulties academically. Furthermore the Department had a new and inexperienced teacher to train and assist through the NQT programme.

In oral evidence, Mr Wheeler suggested another reason for awarding Mr Canning three points, namely that the previous incumbent to the post had three points allocated to him and it was not considered to be a good time to downgrade the Department. The tribunal raised its concern that Mr Wheeler was giving hearsay evidence about matters which went to the heart of this case, in circumstances where he had not been employed at the time of Mr Canning’s appointment, and the current Headmaster, Mr Hewitt, was also the Headmaster at the relevant time and could have given direct evidence. Further, his assertions were not supported by any documentary evidence. Counsel for the respondent did not give any reason for failing to call Mr Hewitt as a witness other than stating that Mr Wheeler was considered to be the most appropriate witness.

Mr Reid has received three responsibility points since his appointment as Head of Department in 1972. No contract of employment was provided for Mr Reid.

Mr Moore has received three responsibility points since his appointment in 2003. No contract of employment was provided for Mr Moore.

In Royal School Dungannon there are 17 Heads of Department, nine female and eight male. Only one Head of Department receives four responsibility points and she is female. Five male and three female Heads of Department receive three responsibility points. Three male and four female Heads of Department receive two responsibility points.

All Heads of Department are expected to carry out a common list of duties which may be found in the general description of Head of Department’s posts in the Staff Handbook. However, the tribunal accepts that these duties are not carried out to the same extent, volume or level of responsibility by all Heads of Department. The Department of Education authorises schools to make distinctions in the allocation of responsibility points to reflect these differences.

In his witness statement to the tribunal, Mr Wheeler , on behalf of the respondent, stated that although the claimant does carry out the duties of Head of Department as listed in the Staff Handbook the list of duties performed by the claimant and her comparators may be differentiated in terms of the extent, volume and level of responsibilities. He stated that of the 12 duties performed by all Heads of Department, six duties in particular involve different levels in the volume and associated responsibilities. These duties are as follows:-

monitoring effectiveness of teaching and learning

organisation of all matters pertaining to teaching of the subject

oversight of setting and marking all internal examinations

collation and tabulation of marks and statistics

professional development and guidance of departmental staff, including technicians

overseeing all field trips, visits, projects, etc

Mr Wheeler prepared a grid setting out the claimant’s level of responsibility and that of the three comparators’ in relation to those duties. It is reproduced below:-

Year 2007/08	Pamela McMullan HOD Food Technology	Nigel Canning HOD Design & Technology	David Reid HOD Biology	Philip Moore HOD Modern Languages
GCSE Pupils	73	52	206	224
A Level Pupils	41	19	80	29
Number of Full-time equivalent teachers in Department	1.95	1.66	2.76	4.00
Number of Technicians under HOD Supervision	Nil	One Technician	One Technician	Two Language Assistants
Extent of Field Trips	Two half day trips to Tayto Factory per annum	Two half day trips to local factories. Organisation of Women in Science talk with Head of Physics	1 day Field Trip which under the new curriculum will revert back to a 3 day Field Trip	Three one day careers trips plus 6 day French/ Germany Language trip abroad

The tribunal accepts that the information provided in the table confirms that both Mr Reid and Mr Moore are responsible for a greater number of GCSE and A Level pupils than the claimant. Furthermore, the tribunal accepts that in terms of the number of full-time equivalent teachers in Department, Mr Reid and Mr Moore have greater responsibility than the claimant.

However, the tribunal also accepts that the claimant is responsible for a greater number of GCSE and A Level pupils than Mr Canning. Furthermore, the tribunal accepts that in terms of the number of full-time equivalent teachers in Department, the claimant has greater responsibility than Mr Canning.

Although the information in the table suggests that the claimant does not have any technicians under her supervision, the tribunal does not accept that contention. The claimant is responsible for the supervision of a number of gap year student assistants known as Dillworth tutors. The respondent sought to draw a distinction between the Dillworth tutors and technicians and language assistants on the basis that Dillworth tutors are not qualified. The tribunal rejects the assertion that the level of responsibility for supervising untrained assistants is less than that required for qualified assistants. On the contrary, in the tribunal’s view it is more likely that untrained and unqualified assistants would require more supervision. The tribunal also takes into account the fact that Mr Canning has shared responsibility for his assistant with the Head of Physics and the assistant is very experienced in carrying out his duties.

In terms of the extent of field trips carried out by the claimant and her three comparators, the tribunal accepts that Mr Moore has more responsibility than the claimant. However, the tribunal does not accept that either Mr Canning or Mr Reid have significantly more responsibility than the claimant.

The tribunal also accepts that in terms of the total number of periods relating to the individual Departments, the claimant currently has 90 periods per week, Mr Canning’s Department currently has 72 periods per week, Mr Moore’s Department currently has 159 periods per week and Mr Reid’s Department currently has 117 periods per week.

In addition to her role as Head of Department the claimant carries out the following duties:-

(1) Form Teacher

Deputy Designated Teacher for Child Protection

Teaching member of the Career’s Department

Member of the Anti-Bullying Committee

Member of Scripture Union Leadership Team

Assistant in Box Office for Annual School Production

The respondent accepts that the claimant’s role as Form Teacher is a significant pastoral duty, but does not accept that the claimant’s time involvement in the other activities is significant.

Mr Canning carries out the following additional duties:-

(1) Form Teacher

Coach for rugby, cricket and golf which involves extensive afterschool, weekend and lunchtime activities

Organiser of biannual ski trips and Tour Manager of the trip

(4) Set-maker for the annual school play

Mr Reid carries out the following additional duties:-

(1) Senior Hockey Coach involved in extensive lunchtime, after school and weekend activities, including overseas hockey tours

Organising and participating in fundraising events for the tours

Mr Moore carries out the following additional duties:-

(1) Organising, producing and directing the school play

(2) Tour Manager for a six day Language Department trip in 2007

In 2006 when the claimant first raised her complaint the School Salary Policy did not set out any specific factors to be taken into account in determining the allocation of responsibility points. The only guidance contained in that policy is that ‘a point may be awarded to a teacher who undertakes significant management responsibilities beyond those common to the majority of classroom teachers’.

On 20 December 2006, the Department of Education issued a circular in which at Paragraph 4.1 it stated:-

“With effect from 1 September 2006 relevant bodies may award one of five teaching allowances to a teacher undertaking sustained additional responsibilities primarily focused on teaching and learning. The relevant body shall determine when making an award whether the allowance should be retained while the classroom teacher remains in the same post or that it is to be awarded for a fixed period of time.”

In 2007, after the respondent had dismissed the claimant’s complaint a new Salary Policy was issued which for the first time set out 13 criteria for awarding teaching allowances for Head of Department posts. Paragraph 1.3 states:-

“The following factors are taken into overall consideration in the assessment of whether Departments attract one, two or three teaching allowances and this may change according to budgetary constraints:-

The number of full-time equivalent teachers in the Department (based on 37 periods per week).

Year group in which subjects starts to be non-essential (becomes an option) and is no longer part of the core curriculum.

Security of place on the curriculum at GCSE and A Level.

Proportion of pupils regularly pursuing subject as a university discipline or closely related field.

Difficulty of specialist cover/substitution during absence.

Historical factors, ie its status and viability for all pupils in exams over the years.

Overspill into lunch time co-curricular activities and frequency of role in after-school extracurricular activities.

Importance and impact of role in major school activities (sports day, concerts, plays, musicals, etc).

The number of pupils involved in A Level, AS and GCSE examination classes.

Use and management of technicians, tours, field trips, concerts, practicals, etc.

All Heads of Department and Teachers in charge are expected to carry either a major pastoral or other significant role without additional teaching allowances and this is made clear upon appointment for promotion.

Length of service is not in itself the sole or even the major factor in awarding promotional points.

The Board reserves the right to award an additional allowance to attract a suitable candidate to fill a position where there is a shortage of candidates in that particular field.”

Mr Wheeler stated that these factors are not weighted and are taken into account ‘overall’. No explanation was given to the tribunal as to how these factors were taken into account ‘overall’ in respect of the claimant and the three comparators. In particular, no explanation was given as to how the respondent assessed the claimant’s higher level of responsibility for GCSE and A Level pupils, equivalent full-time teachers, higher period numbers and supervision of trainees with Mr Canning’s extracurricular involvement in after schools and weekend coaching activities.

Although Mr Wheeler set out in his witness statement the extensive involvement in extracurricular activities of the three male comparators he was adamant that no particular weight was attached to extracurricular activities such as coaching rugby, hockey and cricket or involvement in the production of the school play. He insisted that the reason he had set out the extent of the male comparators extracurricular activities was simply to correct the erroneous evidence of the claimant in her witness statement that their extra-curricular involvement was minimal.

The law

The tribunal considered the following authorities:-

Mary Fearnon, Margaret Patterson and Judith Toland v Smurfit Corrugated Cases Lurgan Ltd [NICA 29/9/08]

Glasgow City Council & Others v Marshall & Others [2000] IRLR

Tyldesley v TML Plastics Ltd [1996] IRLR

Capper Pass Ltd v Lawton [1976] ICR 83

E Coomes (Holdings) Ltd v Sheilds [1978] IRLR 963

Section 1(1) of the Equal Pay Act (Northern Ireland) 1970 provides that if the terms of a contract under which a woman is employed at an establishment in Northern Ireland do not include an equality clause they shall be deemed to include one. The material provisions (so far as this case is concerned) in sub-section (2) require that a woman employed on the same or like work as a man should enjoy the same pay and conditions. Sub-section (3) deals with the circumstances in which certain provisions of sub-section (2) will not apply and, so far as is material, it provides:-

“(3) An equality clause falling within sub-section (2)(a), (b) or (c) shall not operate in relation to a variation between the woman’s contract and the man’s contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex … .”

28. The claimant must prove that her work is of the same nature or of a broadly similar nature to that of her comparators and if she does so the burden of proof transfers to the respondent to prove that the reason for the difference in pay is not the difference in sex.

29. In Capper Pass Ltd [1977] ICR, Phillips J explained the nature of the enquiry upon which the tribunal is engaged:-

“First, is the work of the same, or, if not, of a broadly similar nature? This question can be answered by a general consideration of the type of work involved and of the skill and knowledge required to do it. It seems to us to be implicit in the words of sub-section (4) that it can be answered without a minute examination of the detail of the differences between the work done by the man and the work done by the woman. But, secondly, if on such an examination the answer is that the work is of a broadly similar nature, it is then necessary to go on to consider the detail and to enquire whether the differences between the work being compared are of ‘practical importance in relation to terms and conditions of employment’. In answering that question the industrial tribunal will be guided by the concluding words of the sub-section. But again, it seems to us, trivial differences, or differences not likely in the real world to be reflected in the terms and conditions of employment, ought to be disregarded. In other words, once it is determined that work is of a broadly similar nature it should be regarded as being like work unless the differences are plainly of a kind which the industrial tribunal in its experience would expect to find reflected in the terms and conditions of employment.”

In Glasgow City Council & Others [respondents] v Marshall & Others [applicants/appellants] the House of Lords held that where the burden passes to the employer to show that the explanation for the variation is not tainted with sex, the employer must satisfy the tribunal on the following matters:-

(1) That the proffered explanation, or reason, is genuine and not a sham or pretence.

That the less favourable treatment is due to this reason. The factor relied upon must be the cause of the disparity. In this regard, and in this sense, the factor must be a ‘material’ factor, that is, a significant and relevant factor. The factor must be ‘material’ in a causative sense, rather than in a justificatory sense.

That the reason is not ‘the difference of sex’, which is apt to embrace any form of sex discrimination, whether direct or indirect.

That the factor relied upon is or, in a case within Section 1(2)(c), may be a ‘material’ difference, that is, a significant and relevant difference, between the woman’s case and the man’s case.

An employer who proves the absence of sex discrimination, direct or indirect, is under no obligation to prove a ‘good’ reason for the pay disparity. If there is any evidence of sex discrimination, such as evidence that the difference in pay has a disparate adverse impact on women, the employer will be called upon to satisfy the tribunal that the difference in pay is objectively justifiable. But if the employer proves the absence of sex discrimination, he is not obliged to justify the pay disparity.

Conclusion

30. The tribunal’s conclusion is that the claimant’s work as Head of the Food, Technology and Fabric Design Department is of the same or of a broadly similar nature to that of the three male Heads of Department. All four Heads of Department share a common list of 12 duties as set out in the general professional description of all Head of Department posts. The type of work involved and the skill and knowledge required to do that work are clearly the same or broadly similar. The tribunal does not accept that differences in level or volume of the roles are such as would justify a conclusion that the work is not of the same or of a broadly similar nature. Any differences are not of practical importance in relation to terms and conditions. In any event, the tribunal is satisfied that taking into account responsibility for GCSE and A Level pupils, equivalent full-time teachers and number of periods taught per week the claimant has greater responsibility than Mr Canning in terms of level and volume.

31. The burden of proof therefore shifts to the respondent to prove on a balance of probabilities that the differences in pay resulting from the allocation of responsibility points are due to a material factor other than sex.

32. The tribunal accepts that the statistical breakdown of Heads of Department in terms of gender does not support the contention that women as a group are discriminated against in the allocation of responsibility points. However, the claimant does not concede that the decision to pay the three comparators more than her is not tainted by sex.

33. In Fearnon, Patterson and Toland v Smurfit Corrugated Cases Lurgan Ltd the Court of Appeal in a red-circling case stated that “to qualify as a contemporaneous genuine material factor accounting for the discrepancy in salary, the reasons for it at the time that the difference in earnings is challenged must be examined. Otherwise it would be possible for an unscrupulous employer to allow a difference in earnings to persist while knowing that the initial reason for it no longer obtained”. Therefore in deciding whether the respondent has discharged the burden of proof the tribunal recognises that it is incumbent on it to examine not only the reason why each Head of Department was awarded the specific number of responsibility points at the date of appointment, but also the reason why the differential continues.

34. The tribunal was not provided with any evidence for the decision to award Mr Moore or Mr Reid three points at the date of appointment. However, the tribunal is satisfied that the fact that both of these men are responsible for much larger Departments in terms of GCSE and A Level pupils, equivalent full-time teachers and the number of periods taught on a weekly basis is a genuine material factor untainted by sex which explains the difference in pay. In reaching this conclusion the tribunal has taken account of the fact that it was these factors which Mr Wheeler chose to rely on in his witness statement to explain a justifiable differential in the allocation of points.

35. In relation to Mr Canning the tribunal does not accept that the respondent has discharged its burden of proving that the reason Mr Canning was awarded three points on appointment or that the decision to maintain that position is due to a material factor untainted by sex. The tribunal attaches very little weight to Mr Wheeler’s evidence in relation to the decision to allocate Mr Canning three points on appointment for the following reasons:-

(i) The contention that there were difficulties in recruitment to the post of Head of Design and Technology was not supported by any documentary evidence.

(ii) The current Headmaster, Mr Hewitt, was also the Headmaster when Mr Canning was appointed and was in a position to give direct evidence to the tribunal about this matter.

(iii) Mr Wheeler was not employed at the date of Mr Canning’s appointment and had no direct knowledge of the circumstances surrounding Mr Canning’s appointment.

(iv) Mr Wheeler gave two contradictory explanations in relation to this matter. The first related to difficulties in recruitment. The second related to the fact that the previous incumbent had been awarded three points and it was not considered a good time to downgrade the Department in view of the building project that was ongoing in the Department and other factors relating to the Department.

(v) This evidence went to the heart of the issues in this case. Despite the tribunal raising its concern that direct evidence was not given by Mr Hewitt it was not suggested that there was any difficulty in calling him and the only explanation that was given was that the respondent considered Mr Wheeler to be the most appropriate witness.

36. The evidence is clear that the claimant has greater responsibility than Mr Canning in terms of GCSE and A Level pupils, equivalent full-time teachers, number of periods taught per week and supervision of non-teaching staff. Although the tribunal accepts that Mr Canning has more extensive involvement in extracurricular after school and weekend activities than the claimant, the respondent failed to explain how it assessed the claimant’s higher level of Departmental responsibilities with Mr Canning’s higher level of extracurricular activities. The tribunal notes that Mr Wheeler was adamant that extracurricular activities did not carry any more weight than any other factor. In circumstances where the burden of proof is on the respondent it is not for the tribunal to second guess the respondent’s reasons for making differentials in pay.

37. The respondent’s failure to explain its reasons is significant because allocating responsibility points based on higher levels of Departmental responsibility is a reason untainted by sex. On the other hand, allocating responsibility points based on extracurricular activities which take place after school hours and weekends could be a reason tainted by sex because such a criterion could indirectly discriminate against women. If the respondent had sought to explain the difference in pay on the basis of Mr Canning’s extracurricular activities the onus would have been on the claimant to prove indirect discrimination. If she had done so it would have been open to the respondent to prove that the discrimination was justified (Briggs v North Eastern Education & Library Board [1990] NIJB). However, this issue does not arise in this case because the respondent failed to explain the reason for the differential.

38. The tribunal therefore finds that in respect of Mr Moore and Mr Reid the respondent has discharged the burden of proving a genuine material factor untainted by sex for the pay differential. However, in respect of Mr Canning the respondent has failed to discharge its burden.

Vice President:

Date and place of hearing: 29 September 2008 – 1 October 2008, Belfast

Date decision recorded in register and issued to parties:

11.